HomeMy WebLinkAboutresolution.council.061-08RESOLUTION NO.~
Series of 2008
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING A CONTRACT FOR WEB BASED PROGRAM REGISTRATION FOR
THE PARKS AND RECREATION DEPARTMENT, BETWEEN THE CITY OF
ASPEN AND THE ACTIVE NETWORK INC, AND AUTHORIZING THE MAYOR
OR CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE
CITY OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a Contract for web
based program registration for the Aspen Parks and Recreation Department, between the
City of Aspen and The Active Network, Inc., a true and accurate copy of which is
attached hereto as Exhibit "A";
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY
OF ASPEN, COLORADO:
That the City Council of the City of Aspen hereby approves that Contract for web
based program registration, between the City of Aspen and The Active Network, Inc., a
copy of which is annexed hereto and incorporated herein, and does hereby authorize the
Mayor or City Manager to execute said agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the ~~ day of~~-l , 2008.
Michael eland, Mayo
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City Council of t~he/~~
City of Aspen, Colorado, at a meeting held on the day he einabove stated. ~ ~-~~._
athryn S. Koc ,City Clerk
G:\tara\RESOS\Ac[i veN etwork.doc
AGREEMENT FOR PROFESSIONAL SERVICES
This Ageement made and entered on the date hereinafter stated, between the CITY OF
ASPEN, Colorado, ("City") and The Active Network, Inc. , ("Professional").
For and in consideration of the mutual covenants contained herein, the parties agee as
follows:
1. Scone of Work. Professional shall perform in a competent and professional manner
the Scope of Work as set forth at Exhibit "A" attached hereto and by this reference incorporated
herein.
2. Completion. Professional shall commence work immediately upon receipt of a
written Notice to Proceed from the City and complete all phases of the Scope of Work as
expeditiously as is consistent with professional skill and care and the orderly progess of the Work
in a timely manner. The parties anticipate that. all work pursuant to this agreement shall be
completed no later than December 31. 2008. Upon request of the City, Professional shall submit,
for the City's approval, a schedule for the performance of Professional's services which shall be
adjusted as required as the project proceeds, and which shall include allowances for periods of time
required by the City's project engineer for review and approval of submissions and for approvals of
authorities having jurisdiction over the project. This schedule, when approved by the City, shall not,
except for reasonable cause, be exceeded by the Professional.
3. Payment. In consideration of the work performed, City shall pay Professional on a
not to exceed basis for all work performed. The rates for work performed by Professional shall not
exceed those rates set forth in Exhibit "B" appended hereto. Except as otherwise mutually ageed to
by the parties the payments made to Professional shall not initially exceed $30,0000.00 .
Professional shall submit, in timely fashion, invoices for work performed. The City shall review
such invoices and, if they are considered incorrect or untimely, the City shall review the matter with
Professional within ten days from receipt of the Professional's bill.
4. Non-Assienability. Both parties recognize that this contract is one for personal
services and cannot be transferred, assigned, or sublet by either party without prior written consent
of the other. Sub-Contracting, if authorized, shall not relieve the Professional of any of the
responsibilities or obligations under this ageement. Professional shall be and remain solely
responsible to the City for the acts, errors, omissions or neglect of any subcontractors officers,
agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee
of the Professional to the extent of the subcontract. The City shall not be obligated to pay or be
liable for payment of any sums due which maybe due to any sub-contractor.
5. Termination. The Professional or the City may terminate this Ageement, without
specifying the reason therefor, by giving notice, in writing, addressed to the other party, specifying
the effective date of the termination. No fees shall be earned after the effective date of the
PS1-971.doc Page 1
termination. Upon any termination, all finished or unfinished documents, data, studies, surveys,
drawings, maps, models, photographs, reports or other material prepared by the Professional
pursuant to this Agreement shall become the property of the City. Notwithstanding the above,
Professional shall not be relieved of any liability to the City for damages sustained by the City by
virtue of any breach of this Agreement by the Professional, and the City may withhold any
payments to the Professional for the purposes of set-off until such time as the exact amount of
damages due the City from the Professional maybe determined.
6. Covenant Against Contingent Fees. The Professional warrants that s/he has not
employed or retained any company or person, other than a bona fide employee working for the
Professional, to solicit or secure this contract, that s/he has not paid or agreed to pay any company
or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gifts or
any other consideration contingent upon or resulting from the awazd or maknig of this contract.
7. Independent Contractor Status. It is expressly acknowledged and understood by the
parties that nothing contained in this agreement shall result in, or be construed as establishing an
employment relationship. Professional shall be, and shall perform as, an independent Contractor
who agrees to use his or her best efforts to provide the said services on behalf of the City. No
agent, employee, or servant of Professional shall be, or shall be deemed to be, the employee, agent
or servant of the City. City is interested only in the results obtained under this contract. The
manner and means of conducting the work are under the sole control of Professional. None of the
benefits provided by City to its employees including, but not limited to, workers' compensation
insurance and unemployment insurance, are available from City to the employees, agents or
servants of Professional. Professional shall be solely and entirely responsible for its acts and for the
acts of Professional's agents, employees, servants and subcontractors during the performance of this
contract. Professional shall indemnify City against all liability and loss in connection with, and
shall assume full responsibility for payment of all federal, state and local taxes or contributions
imposed or required under unemployment insurance, social security and income tax law, with
respect to Professional and/or Professional's employees engaged in the performance of the services
agreed to herein.
8. Indemnification. Professional agrees to indemnify and hold harmless the City, its
officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and
demands, on account of injury, loss, or damage, including without limitation claims arising from
bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of
any kind whatsoever, which arise out of or aze in any manner connected with this contract, if such
injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in
part by, the act, omission, error, professional error, mistake, negligence, or other fault of the
Professional, any subcontractor of the Professional, or any officer, employee, representative, or
agent of the Professional or of any subcontractor of the Professional, or which arises out of any
workmen's compensation claim of any employee of the Professional or of any employee of any
subcontractor of the Professional. The Professional agrees to investigate, handle, respond to, and to
provide defense for and defend against, any such liability, claims or demands at the sole expense of
the Professional, or at the option of the City, agrees to pay the City or reimburse the City for the
PS1-971.doc Page 2
defense costs incurred by the City in connection with, any such liability, claims, or demands. If it is
determined by the fmal judgment of a court of competent jurisdiction that such injury, loss, or
damage was caused in whole or in part by the act, omission, or other fault of the City, its officers, or
its employees, the City shall reimburse the Professional for the portion of the judgment attributable
to such act, omission, or other fault of the City, its officers, or employees.
9. Professional's Insurance. (a) Professional agrees to procure and maintain, at its own
expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands,
and other obligations assumed by the Professional pursuant to Section 8 above. Such insurance
shall be in addition to any other insurance requirements imposed by this contract or by law. The
Professional shall not be relieved of any liability, claims, demands, or other obligations assumed
pursuant to Section 8 above by reason of its failure to procure or maintain insurance, or by reason of
its failure to procure or maintain insurance in sufficient amounts, duration, or types.
(b) Professional shall procure and maintain, and shall cause any subcontractor of the
Professional to procure and maintain, the minimum insurance coverages listed below. Such
coverages shall be procured and maintained with forms and insurance acceptable to the City. All
coverages shall be continuously maintained to cover all liability, claims, demands, and other
obligations assumed by the Professional pursuant to Section 8 above. In the case of any claims-
made policy, the necessary retroactive dates and extended reporting periods shall be procured to
maintain such continuous coverage.
(i) Workers' Compensation insurance to cover obligations imposed by
applicable laws for any employee engaged in the performance of work under this contract, and
Employers' Liability insurance with minimum limits of FIVE HUNDRED THOUSAND
DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOUSAND DOLLARS
($500,000.00) disease - policy limit, and FIVE HUNDRED THOUSAND DOLLARS
($500,000.00) disease -each employee. Evidence of qualified self-insured status maybe substituted
for the Workers' Compensation requirements of this paragraph.
(ii) Commercial General Liability insurance with minimum combined single
limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION
DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and
operations. The policy shall include coverage for bodily injury, broad form property damage
(including completed operations), personal injury (including coverage for contractual and
employee acts), blanket contractual, independent contractors, products, and completed
operations. The policy shall contain a severability of interests provision.
(iii) Comprehensive Automobile Liability insurance with minimum combined
single limits for bodily injury and property damage of not less than ONE MILLION
DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,00-
0.00) aggregate with respect to each Professional's owned, hired and non-owned vehicles
assigned to or used in performance of the Scope of Work. The policy shall contain a
severability of interests provision. If the Professional has no owned automobiles, the
PS1-971.doc Page 3
requirements of this Section shall be met by each employee of the Professional providing
services to the City under this contract.
(iv) Professional Liability insurance with the minimum limits of ONE
MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS
($1,000,000) aggregate.
(c) The policy or policies required above shall be endorsed to include the City and the
City's officers and employees as additional insureds. Every policy required above shall be primary
insurance, and any insurance carried by the City, its officers or employees, or carried by or provided
through any insurance pool of the City, shall be excess and not contributory insurance to that
provided by Professional. No additional insured endorsement to the policy required above shall
contain any exclusion for bodily injury or property damage arising from completed operations. The
Professional shall be solely responsible for any deductible losses under any policy required above.
(d) The certificate of insurance provided by the City shall be completed by the
Professional's insurance agent as evidence that policies providing the required coverages, condi-
tions, and minimum limits are in full force and effect, and shall be reviewed and approved by the
City prior to commencement of the contract. No other form of certificate shall be used. The certifi-
cate shall identify this contract and shall provide that the coverages afforded under the policies shall
not be canceled, terminated or materially changed until at least thirty (30) days prior written notice
has been given to the City.
(e) Failure on the part of the Professional to procure or maintain policies providing the
required coverages, conditions, and minimum limits shall constitute a material breach of contract
upon which City may immediately terminate this contract, or at its discretion City may procure or
renew any such policy or any extended reporting period thereto and may pay any and all premiums
in connection therewith, and all monies so paid by City shall be repaid by Professional to City upon
demand, or City may offset the cost of the premiums against monies due to Professional from City.
(f) City reserves the right to request and receive a certified copy of any policy and any
endorsement thereto.
(g) The parties hereto understand and agree that City is relying on, and does not waive or
intend to waive by any provision of this contract, the monetary limitations (presently $150,000.00
per person and $600,000 per occurrence) or any other rights, immunities, and protections provided
by the Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as from time to
time amended, or otherwise available to City, its officers, or its employees.
10. City's Insurance. The parties hereto understand that the City is a member of the
Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA
Properly/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen
Finance Department and are available to Professional for inspection during normal business hours.
City makes no representations whatsoever with respect to specific coverages offered by CIRSA.
PS 1-971.doc Page 4
City shall provide Professional reasonable notice of any changes in its membership or participation
in CIRSA.
11. Completeness of Agreement. It is expressly agreed that this agreement contains the
entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or
written representations, agreements, warranties or promises pertaining to the project matter thereof
not expressly incorporated in this writing.
12. Notice. Any written notices as called for herein may be hand delivered to the
respective persons and/or addresses listed below or mailed by certified mail return receipt
requested, to:
City: Tim Anderson Professional: The Active Network, Inc.
Recreation Director 101 Telesis Court,
City of Aspen Suite 300
130 South Galena Street San Diego, California 92121
Aspen, Colorado 81611
13. Non-Discrimination. No discrimination because of race, color, creed, sex, marital
status, affectional or sexual orientation, family responsibility, national origin; ancestry, handicap, or
religion shall be made in the employment of persons to perform services under this contract.
Professional agrees to meet all of the requirements of City's municipal code, Section 13-98,
pertaining to non-discrimination in employment.
14. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not
operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or
condition of this Agreement can be waived except by the written consent of the City, and
forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any
term, covenant, or condition to be performed by Professional to which the same may apply and,
until complete performance by Professional of said term, covenant or condition, the City shall be
entitled to invoke any remedy available to it under this Agreement or by law despite any such
forbearance or indulgence.
15. Execution of Agreement by City. This agreement shall be binding upon all parties
hereto and their respective heirs, executors, administrators, successors, and assigns. Notwith-
standing anything to the contrary contained herein, this agreement shall not be binding upon the
City unless duly executed by the Mayor of the City of Aspen (or a duly authorized official in his
absence) following a Motion or Resolution of the Council of the City of Aspen authorizing the
Mayor (or a duly authorized official in his absence) to execute the same.
16. Illegal Aliens -CRS 8-17.5-101 & 24-76.5-101.
a. Puroose. During the 2006 Colorado legislative session, the Legislature passed
House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added
PS1-971.doc Page 5
new statutes relating to the employment of and contracting with illegal aliens. These new
laws prohibit all state agencies and political subdivisions, including the City of Aspen,
from knowingly hiring an illegal alien to perform work under a contract, or to knowingly
contract with a subcontractor who knowingly hires with an illegal alien to perform work
under the contract. The new laws also require that all contracts for services include
certain specific language as set forth in the statutes. The following terms and conditions
have been designed to comply with the requirements of this new law.
b. Definitions. The following terms are defined in the new law and by this reference
are incorporated herein and in any contract for services entered into with the City of
Aspen.
"Basic Pilot Program" means the basic pilot employment verification program
created in Public Law 208, 104th Congress, as amended, and expanded in Public Law
156, 108th Congress, as amended, that is administered by the United States Department
of Homeland Security.
"Public Contract for Services" means this Agreement.
"Services" means the furnishing of labor, time, or effort by a Contractor or a
subcontractor not involving the delivery of a specific end product other than reports that
are merely incidental to the required performance.
c. By signing this document, Professional certifies and represents that at this time:
(i) Professional shall confirm the employment eligibility of all employees who aze
newly hired for employment in the United States; and
(ii) Professional has participated or attempted to participate in the Basic Pilot
Program in order to verify that new employees are not employ illegal aliens.
d. Professional hereby confirms that:
(i) Professional shall not knowingly employ or contract new employees
without confirming the employment eligibility of all such employees hired for
employment in the United States under the Public Contract for Services.
(ii) Professional shall not enter into a contract with a subcontractor that fails to
confirm to the Professional that the subcontractor shall not knowingly hire new
employees without confirming their employment eligibility for employment in the
United States under the Public Contract for Services.
(iii) Professional has verified or has attempted to verify through participation
in the Federal Basic Pilot Program that Professional does not employ any new
PS1-971.doc Page 6
employees who are not eligible for employment in the United States; and if
Professional has not been accepted into the Federal Basic Pilot Program prior to
entering into the Public Contract for Services, Professional shall forthwith apply
to participate in the Federal Basic Pilot Program and shall in writing verify such
application within five (5) days of the date of the Public Contract. Professional
shall continue to apply to participate in the Federal Basic Pilot Program and shall
in writing verify same every three (3) calendar months therea8er, until
Professional is accepted or the public contract for services has been completed,
whichever is earlier. The requirements of this section shall not be required or
effective if the Federal Basic Pilot Program is discontinued.
(iv) Professional shall not use the Basic Pilot Program procedures to undertake
pre-employment screening of job applicants while the Public Contract for
Services is being performed.
(v) If Professional obtains actual knowledge that a subcontractor performing
work under the Public Contract for Services knowingly employs or contracts with
a new employee who is an illegal alien, Professional shall:
(1) Notify such subcontractor and the City of Aspen within
three days that Professional has actual knowledge that the subcontractor
has newly employed or contracted with an illegal alien; and
(2) Terminate the subcontract with the subcontractor if within
three days of receiving the notice required pursuant to this section the
subcontractor does not cease employing or contracting with the new
employee who is an illegal alien; except that Professional shall not
terminate the Public Contract for Services with the subcontractor if during
such three days the subcontractor provides information to establish that the
subcontractor has not knowingly employed or contracted with an illegal
alien.
(vi) Professional shall comply with any reasonable request by the Colorado
Department of Labor and Employment made in the course of an investigation that
the Colorado Department of Labor and Employment undertakes or is undertaking
pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S.
(vii) If Professional violates any provision of the Public Contract for Services
pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City of
Aspen may terminate the Public Contract for Services. If the Public Contract for
Services is so terminated, Contractor shall be liable for actual and consequential
damages to the City of Aspen arising out of Professional's violation of Subsection
8-17.5-102, C.R.S.
PS1-971.doc Page 7
(ix) If Professional operates as a sole proprietor, Professional hereby swears or
affirms under penalty of perjury that the Professional (1) is a citizen of the United
States or otherwise lawfully present in the United States pursuant to federal
law,(2) shall comply with the provisions of CRS 24-76.5-101 et seq., and (3) shall
produce one of the forms of identification required by CRS 24-76.5-103 prior to
the effective date of this Agreement.
17. General Terms.
(a) It is agreed that neither this agreement nor any of its terms, provisions,
conditions, representations or covenants can be modified, changed, terminated or amended, waived,
superseded or extended except by appropriate written instrument fully executed by the parties.
(b) If any of the provisions of this agreement shall be held invalid, illegal or
unenforceable it shall not affect or impair the validity, legality or enforceability of any other
provision.
(c) The parties acknowledge and understand that there are no conditions or
limitations to this understanding except those as contained herein at the time of the execution
hereof and that after execution no alteration, change or modification shall be made except upon a
writing signed by the parties.
(d) This agreement shall be governed by the laws of the State of Colorado as
from time to time in effect.
IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly
authorized officials, this Agreement in three copies each of which shall be deemed an original on
the date hereinafter written.
[SIGNATURES ON FOLLOWING PAGE]
PS1-971.doc Page 8
ATTESTED BY:
CITY OF ASPEN, COLORADO:
WITNESSED BY:
J
Title:
Date: `~>
PROFESSIONAL•
Title: ~ V 1''
Date: j~- -~ ~- 2z3 2wS
~~
PS1-971.doc Page 9
A~ac~v..2r't ~t ~u
$aCt/VpNETWORK PRODUCT AND SERVICES AGREEMENT
CUSTOMER INFORMATION
ORGANIZATION
NAME: City of Aspen
Parks and Recreation ADDRESS: 130 South Galena Street
Aspen , CO 81611-1902
CONTACT NAME: Nick Nicholson TELEPHONE: 97029-1727
EMAIL: nicknCalci.aspen.co.us FAX:
EFFECTIVE DATE:
OVERVIEW OF AGREEMENT
This document (the "Agreement") consists of this cover page, the attached Pricing Form attached to the end of this
Agreement, the General Terms, and the following Schedules (check all applicable Schedules):
X Schedule A: Hosted Software
Schedule B: Licensed Software; Support and Maintenance
Schedule C: Third Party Products
In consideration of the mutual promises and covenants contained in this Agreement, Customer and TAN hereby
agree to be bound by this Agreement. By signing below, Customer acknowledges and conffrms that it has read the
General Terms and all attached Schedules and understands that each forms an integral part of this Agreement.
CUSTOMER THE ACTIVE NETWORK, IN
Q ("TAN")
Signature: (
Signature: l
Name: Name:
~~~~--f;Y~
Title: C n ' 1
Title: ~` ~/~'
The Active Network, Inc., 10182 Telesis Court, Ste. 300, San Diego, California 92121
Telephone: (800) 661-1196, Fax: (604) 432-9708
Software Licensing, Services and 3d Party Products Agt. (v. Mar. 28, 2008)
GENERAL TERMS
GENERAL TERMS: TERMS APPLICABLE TO ALL
PRODUCTS AND SERVICES
1. INTERPRETATION
1.1 Definitions. For the purposes of interpreting this
Agreement, the following terms will have the following
meanings:
(a) "Agreement" means this Products and Services
Agreement, inclusive of all Schedules.
(b) "Concurrent Use" means use at the same moment in time
to access a given server computer (of any kind) owned or
controlled by Customer.
(c) "Customer" means the legal entity other than TAN
entering this Agreement.
(d) "Database Server" means the single server computer upon
which the Enterprise Database is resident.
(e) "Enterprise Database" means the MSDE, MS SQL
Server, or Oracle database files containing customer data and
that aze accessed by the Licensed Software.
(f) "Hosted Software" means computer code and programs,
in executable code form only, including related data files, roles,
parameters and documentation, which have been created or
licensed by TAN and are identified in the Pricing Form as
licensed (or sublicensed) to Customer by TAN in connection
with this Agreement, and which reside on TAN's servers and aze
accessible by Customer's staff or Users via the Internet.
(k) "Maintenance" means the provision of error investigation
and repair services as set out in section 22.1 and the provision of
new Versions and Releases in respect of the Licensed Software
all as more particularly set out in the Support and Maintenance
Handbook.
(p "Module" means a single module element of Licensed
Softwaze listed in the Pricing Form.
(m) "Online Services" means services, such as Intemet
registration, that aze enabled by Hosted Softwaze and available to
the public via the Internet.
(n) "Other Services" means Services other than Pre-Agreed
Services acquired by Customer under this Agreement.
(o) "Payment Server"meansasingle server computer used by
Customer to process electronic payments from its clients, having
a minimum configuration as set out in hardware specifications
previously described to Customer as applicable to the Licensed
Software to be installed and used upon it.
(p) "Pre-Agreed Services" means Services which are
expressly listed in the Pricing Form as being acquired hereunder
by Customer.
(q) "Pricing Form" means the itemized pricing form attached
to the Agreement listing the products and services provided by
TAN to the Customer under this Agreement
(r) "Products" means all Licensed Software, Hosted Sofwaze,
Third Party products, and other products (including
documentation) provided to Customer by or on behalf of TAN.
(g) "Internet Client" means a remote device capable ofusing
the Intemet to access selected Licensed Software on the Internet
Server or the Enterprise Database on the Database Server via the
Internet Server.
(h) "Internet Server" means a single server computer used by
Customer which enables access to the Licensed Software by
individuals using an Intranet or the Internet, having a minimum
configuration as set out in hazdware specifications previously
described to Customer as applicable to the Licensed Sofware to
be installed and used upon it.
(i) "IVR Server" means a single server computer used by
Customer for voice-recognition and telephone-based, rather than
computer-based, access to the Enterprise Database by
Customer's clients, having a minimum configuration as set out in
hardwaze specifications previously described to Customer as
applicable to the Licensed Softwaze to be installed and used
upon it.
(j) "Licensed Software" means computer code andprograms,
in executable code form only, including related data files, roles,
parameters and documentation, which have been created or
licensed by TAN and are identified in the Pricing Form as
licensed (or sublicensed) to Customer by TAN in connection
with this Agreement, and/or which are in the future provided to
Customer by TAN under any circumstances unless provided
under a separate licensing agreement.
(s) "Professional Services" means any and all types of
services which TAN provides, to Customer and/or to other
customers of TAN, in the course of TAN's business, including
but not limited to services relating to the installation,
implementation, optimization, administration, training and
troubleshooting of computers, computer softwaze including the
Licensed Software, computer networks, databases, internet-
related equipment and applications, but expressly excludes
Support and Maintenance.
(t) "Related Third Party Documentation" means any end
specifications, manuals, instructions, and other materials, and
any copies of any of the foregoing, in any medium, related to the
Third Party Products and supplied by TAN to Customer with the
Third Party Products.
(u) "Release" means any release, update, patch, set of
revisions, or bug/permanent fix or temporary bypass solution
released by TAN to its customers generally during the term of
this Agreement, which provides enhancements and/or error
corrections to the then-current Version or Release, and where a
new Version has been released and no new Release has been
released since the release of that Version, that Version will also
constitute a Release for the purpose of determining whether
Support or Maintenance is available with respect to that Version.
New Releases will be denoted by an increase to the version
number to the right of the decimal point such as from
Release 1.1 to Release 1.2.
Software Licensing, Services and 3tl Party Protlucts wgt. (v. Mar. 11, 2008)
GENERAL TERMS
(v) "Services" means all Professional Services, Support and
Maintenance, Online Services, and other services provided to
Customer by or on behalf of TAN.
(w) "Services Table" means the table ofPre-Agreed services,
together with associated costs, shown in the Pricing Form.
(gg) "Version" means a version of the Licensed Software
providing a particulaz functionality, while a new Version of the
Licensed Software will provide new/additional functionality
and/or improvements to a previous Version. New Versions will
be denoted by a change to the version number to the left of the
decimal point such as from Vetsion 1.0 to Version 2.0.
(x) "Software" means the Licensed Software and the Hosted
Softwaze as defined elsewhere in this section.
(y) "Support" means the ongoing telephone, email, web-
based and dial-in support and problem resolution to assist
Customer in the use of the Licensed Softwaze, the Hosted
Sofwaze, and other services and products of TAN as set out in
the Support and Maintenance Handbook.
(z) "Support and Maintenance Handbook" means the
documents published by TAN setting out the applicable service
levels, processes, restrictions, and other particulars of Support
and Maintenance provided in respect of the Software and other
Services and Products of TAN, as amended from time to time
upon notice to Customer.
(aa) "Support Start Date" means, for implementations
performed by Active, the first day of implementation of the
Licensed Softwaze or 90 days following the delivery of the
Licensed Software, whichever occurs first, and upon delivery of
the Licensed Softwaze for implementations being performed by
the customer or a 3rd party vendor.
(bb) "System Utilities" includes the following: Accounting
Processes, Central Login, Log File, Copy Database, Edit
Database, Maintain Database, MSDE Tool, Oracle Semp Utility,
Query Tool, System Maintenance, Upgrade Database and View
Components.
(cc) "TAN" means The Active Network as referenced on the
fast page of this Agreement.
(dd) "Third Party Products" means those hazdwaze, fn-mwaze
and/or software products, provided to TAN by third parties,
listed in the Pricing Form, together with all user manuals and
other documents accompanying the delivery of the Third Party
Products, provided that the Third Party Products shall not
include software developed by TAN.
(ee) "Third Party Products Support" means assistance to
isolate the source ofproblems and/or to troubleshoot difficulties
resulting from sources other than TAN products or services, such
as general network support (for example network access,
printing, backup & restoration); PC hardware trouble shooting;
PC setup, configuration and optimization; network operating
system configuration and functionality; basic Microsoft
Corporation "Windows" functionality (for example, using File
Manager or Explorer), modem configuration & setup; data
corruption due to lack of disk space; and loss of supervisor or
other password, all as further set out in the Support and
Maintenance Handbook.
(ff) "User" means a person who accesses and uses any of the
Products in any manner whatsoever.
(hh) "Workstation" means a computer attached to a local or
wide-area network (including an Intranet), which accesses the
Licensed Software or Enterprise Database.
1.2 Headings. The headings contained in this Agreement are
inserted for convenience and do not form a part of this
Agreement and are not intended to interpret, define or limit the
scope, extent or intent of this Agreement or any provision hereof.
2. CHARGES AND PAYMENTS
2.1 Taxes and Other Charges. Customer willpay all shipping
& handling costs and, unless exempted by law, all applicable
sales, use, withholding and excise taxes, and any other
assessments against Customer in the nature of taxes, duties or
chazges however designated on the Services and Products or
their license or use, on or resulting from this Agreement,
exclusive of taxes based on the net income of TAN. Sales and
any other applicable taxes, duties, or any other chazges in the
nature of taxes and duties are not included unless specifically
identified as line items in the Pricing Form
2.2 Currency. Unless otherwise indicated in the Pricing Form,
all prices are in the currency of the country in which the
Customer is located.
2.3 Delivery. Delivery for the Products supplied by TAN under
this Agreement will be deemed to have occurred F.O.B. origin.
2.4 Invoices/Payment. TAN will provide invoices to Customer
for all amounts owing by Customer hereunder. Such invoices
are to be provided as indicated in the attached Schedules or
Pricing Form, and subsequently due within 30 days fromthe date
of invoice.
3. CUSTOMERINFORMATION; CONFH)ENTL4LITY
3.1 Customer Information. In order to assist TAN in the
successful provision or services and products to Customer,
Customer shall provide to TAN all information relating to
Customer's organization, technology platforms, systems
configurations, and business processes and otherwise relating to
Customer as is reasonably requested by TAN from time to time.
3.2 ContidentialInformation.
(a) In the performance of or otherwise in cotmection with this
Agreement, one party ("Disclosing Party") may disclose to the
other patty ("Receiving Party") certain Confidential Information
of the Disclosing Party. Confidential Information" means any
information of either party, which is not generally known to the
public, whether of a technical, business or other nature
(including, but not necessarily limited to: trade secrets, know
how, computer program source codes, and information relating
to the customers, business plans, promotional and marketing
2
Software Licensing, Services antl 3tl Party Protlucts Agt. (v. Mar. 28, 2008)
GENERAL TERMS
activities, finances and other business affairs of such party);
provided that the same is conspicuously marked or otherwise
identified as confidential or proprietary information prior to,
upon or promptly after receipt by the other party; and provided
further that the any software or softwaze application server
source code provided by TAN or its licensors shall be deemed to
constitute Confidential Information without further designation
by TAN. The Receiving Party will treat such Confidential
Information as confidential and proprietary of the Disclosing
Party and will use such Confidential Information solely for the
purposes for which it is provided by the Disclosing Party and
will not disclose such Confidential Information to any third party
(other than a third pazty under contract whereby that third party
has agreed in writing to keep the Confidential Information
confidential).
(b) Exclusions. The obligations under this paragraph will not
apply to any: (i) use or disclosure of any information pursuant to
the exercise of the Receiving Party's fights under this
Agreement; (ii) information that is now or later becomes
publicly available through no fault of the Receiving party; (iii)
information that is obtained by the Receiving Party from a third
party authorized to make such disclosure (other than in
connection with this Agreement) without any obligation of
secrecy or confidentiality; (iv) information that is independently
developed by the Receiving Party (e.g., without reference to any
Confidential Information); (v) any disclosure required by
applicable law (e.g., pursuant to applicable securities laws or
legal process), provided that the Receiving Party will use
reasonable efforts to give advance notice to and cooperate with
the Disclosing Party in connection with any such disclosure; and
(vi) any disclosure with the consent of the Disclosing Party.
4. WARRANTY
4.1 Limited Warranty of Software. TAN warrants that when
utilized by Customer in a manner authorized hereunder, the
Software will conform to the functional specifications set out in
the user documentation accompanying the Software for ninety
(90) days from delivery of the Software ("Warranty Period").
Delivery shall be deemed to have occurred upon TAN's email
transmission of an FTP link to Customer permitting download of
[he Softwaze from TAN's designated online site, or where
delivered in the form of physical media, F.O.B. origin. TAN's
sole obligation and liability hereunder with respect to any failure
to so perform will be to use reasonable efforts to remedy any
non-conformity which is reported to TAN hr writing by
Customer within that Warranty Period. In the event TAN is
unable to remedy such non-conformity within a reasonable time
using reasonable efforts, a) in respect to the Licensed Softwaze
TAN may refund to Customer the license fee pertaining to the
Licensed Software, subject to Customer's return ofthe Licensed
Softwaze, and this Agreement will be automatically terminated,
or b) in respect to Hosted Softwaze TAN may refund to
Customer the fees paid by the Customer to TAN for Services
provided to implement the Hosted Software, and this Agreement
will be automatically terminated. All warranty service will be
performed at service locations designatedbyTAN. This Limited
Warranty is void if failure of the Software has resulted from
accident, abuse or misapplication. Any replacement Software
will be warranted for the remainder of the original warranty
period or 30 days, whichever is longer.
5. EXCLUSION OF WARRANTIES AND
LIMITATION OF LIABILITY
5.1 SPECIFIC EXCLUSION OF OTHER WARRANTIES.
THE EXPRESS WARRANTIES SET OUT IN THIS
AGREEMENT ARE IN LIEU OF ALL OTHER
WARRANTIES, AND THERE ARE NO OTHER
WARRANTIES, REPRESENTATIONS, CONDITIONS, OR
GUARANTEES OF ANY KIND WHATSOEVER
APPLICABLE, EITHER EXPRESS OR IMPLIED BY LAW
(IN CONTRACT OR TORT OR OTHERWISE) OR CUSTOM,
INCLUDING, BUT NOT LIMITED TO THOSE REGARDING
MERCHANTABILITY, FITNESS FOR PURPOSE,
DURABILITY, CORRESPONDENCE TO SAMPLE, TITLE,
DESIGN, CONDITION, OR QUALITY. WITHOUT
LIMITING THE ABOVE, TAN DOES NOT WARRANT
THAT ANY PRODUCTS OR SERVICES PROVIDED
HEREUNDER WILL MEET THE REQUIREMENTS OF
CUSTOMER OR THAT THE OPERATION OF PRODUCTS
PROVIDED HEREUNDER WILL BE FREE FROM
INTERRUPTION OR ERRORS.
5.2 RESTRICTIONS ON WARRANTY. TAN HAS NO
OBLIGATION TO REPAIR OR REPLACE PRODUCTS
DAMAGED BY ACCIDENT OR OTHER EXTERNAL
CAUSE OR THROUGH THE FAULT OR NEGLIGENCE OF
ANY PARTY OTHER THAN TAN.
5.3 NO INDIRECT DAMAGES. WITHOUT LIMITING
THE GENERALITY OF SECTIONS 5.1 AND 5.4, IN NO
EVENT WILL TAN BE LIABLE TO CUSTOMER OR TO
ANY OTHER PARTY FOR INDIRECT DAMAGES OR
LOSSES (IN CONTRACT OR TORT OR OTHERWISE),
INCLUDING BUT NOT LIMITED TO DAMAGES FOR
LOST PROFITS, LOST SAVINGS, LOST DATA, LOSS OF
USE OF INFORMATION OR SERVICES, OR INCIDENTAL,
CONSEQUENTIAL, OR SPECIAL DAMAGES.
5.4 LIMITS ON LIABILITY. IF, FOR ANY REASON, TAN
BECOMES LIABLE TO CUSTOMER OR ANY OTHER
PARTY FOR DIRECT OR ANY OTHER DAMAGES FOR
ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE
FORM OF ACTION (IN CONTRACT OR TORT OR
OTHERWISE), THEN:
(a) THE AGGREGATE LIABILITY OF TAN TO
CUSTOMER AND ALL OTHER PARTIES IN CONNECTION
WITH THE PRODUCTS AND THE SERVICES WILL BE
LIMITED TO AN AMOUNT EQUAL TO THE AMOUNT
PAID TO TAN HEREUNDER, DURING THE TWO YEARS
PRECEDING THE LAST INCIDENT GIVING RISE TO THE
LIABILITY: AND
(b) IN ANY CASE CUSTOMER MAY NOT BRING OR
INITIATE ANY ACTION OR PROCEEDING AGAINST TAN
ARISING OUT OF THIS AGREEMENT OR RELATING TO
Software Licensing, Services and 3d Party Products Agt. (v. Mar. 28, 2008)
GENERAL TERMS
ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER
MORE THAN TWO YEARS AFTER THE RELEVANT
CAUSE OF ACTION HAS ARISEN.
5.5 SEPARATE ENFORCEABILITY. SECTIONS 5.1
THROUGH 5.4 ARE TO BE CONSTRUED AS SEPARATE
PROVISIONS AND WILL EACH BE INDIVIDUALLY
ENFORCEABLE.
6. RESTRICTIONS
6.1 U.S. GOVERNMENT RESTRICTED RIGHTS. The
Products are provided with restricted rights. Use, duplication, or
disclosure by the U.S. Government is subject to restrictions as
set forth in subpazagraph (c) (1)(ii) of The Rights in Technical
Data and Computer Softwaze clause at DFARS 252.227-7013, or
subparagraphs (c) (1) and (2) of the Commercial Computer
Softwaze -Restricted Rights at 48 CFR 52.227-19, as applicable.
The Manufacturer is The Active Network, Inc., Suite 300,10182
Telesis Court, San Diego, California, United States, 92121.
6.2 Export Restrictions. The Products may include encryption
software or other encryption technologies that maybe controlled
for import, export, or purposes under the laws and regulations of
the countries and/or territories in which the Products are used
("Applicable Law"). Customer may not export, re-export, or
assist or facilitate in any manner the export or re-export of, any
portion of the Products, as determined by Applicable Law under
which the Customer operates: (i) to any country on Canada's
Area Control List; (ii) to any country subject to UN Security
Council embazgo or action; (iii) contrary to Canada's Export
Control List Item 5505; (iv) to countries subject to U.S.
economic sanctions and embazgoes; and (v) to persons or entities
prohibited from receiving U.S. exports or U.S.-origin items.
Customer hereby represents and covenants that: (i) to the best of
Customer's knowledge Customer is eligible to receive the
Products under Applicable Law; (ii) Customer will import,
export, or re-export the Products to, or use the Products in, any
country or temtory only in accordance with Applicable Law; and
(iii) Customer will ensure that Customer's Users use the
Products in accordance with the foregoing restrictions.
6.3 Third Party Software and Open Source Components.
The Software may contain open source components or other
third party soRwaze of which the use, modification, and
distribution is governed by license terms (including limitations
of liability) set out in the applicable documentation (paper or
electronic) or read me files.
7. TERMINATION
7.1 Termination. This Agreement will terminate:
(a) at the option of either party if the other party materially
defaults in the performance or observance of any of its
obligations hereunder and fails to remedy the default within 30
days after receiving written notice thereof and
(b) without limiting (a), at the option of TAN if Customer
breaches section 2 of this Agreement, provided that the right of
termination will be in addition to all other rights and remedies
available to the parties for breach or default by the other.
7.2 Suspension of Obligations. If either party should
materially default in the performance or observance of any of its
obligations hereunder, then, in addition to all other rights and
remedies available to the non-defaulting party, the non-
defaulting party may suspend performance and observance of
any or all its obligations under this Agreement, without liability,
until the other party's default is remedied, provided however that
this section will not permit Customer to suspend its obligation to
make any payments due for Products or Services that are
unrelated to any default alleged against TAN.
7.3 Return of Materials. In the event of termination of this
Agreement for any reason whatsoever, Customer will
immediately (i) return to TAN all physical copies of Products
delivered by TAN to Customer or otherwise in Customer's
possession or control, or (ii) if expressly permitted by TAN,
destroy all physical copies of the Products not returned to TAN
and delete all electronic copies of the Products from its systems
and certify in writing to TAN that such actions have all been
completed.
8. AUDIT AND MONITORING RIGHTS
8.1 TAN may, upon a minimum of 24 hours written notice to
Customer, attend upon Customer's premises and verify that the
Products aze being used only as permitted hereby. Such
inspections may occur a maximum of twice per calendaz year,
and will be performed only during Customer's regular business
hours and conducted in a manner as to minimize, to the extent
reasonable, interference with Customer's business. Further, TAN
may, using automatic means which do not interfere with the use
of the Products by Customer or Users other than as described in
this provision, monitor at any time usage of the Products by
Customer and or its Users including through monitoring of the
number of copies of any particular Module(s) in Concurrent Use.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Warranty of Title. TAN warrants that it has all rights
necessary to make the grant of license herein by having all right,
title, and interest in and to the Products (other than Third Party
Products) or as licensee of all such rights from the owner thereof.
9.2 Intellectual Property. TAN and its licensors shall retain
all right, title, and interest in and to the Products and the results
of the Services and to all softwaze, trademarks, service marks,
logos, and trade names and other worldwide proprietary rights
related thereto ("Intellectual Property"). Customer shall use the
Intellectual Property only as provided by TAN, and shall not
alter the Intellectual Property in any way, or act or permit action
in any way that would impair TAN's or its licensors' rights in its
Intellectual Property. Customer acknowledges that its use of the
Intellectual Property shall not create in Customer or any other
person any right, title, or interest in or to such Intellectual
Property. Any goodwill accruing from the use of the Intellectual
Property shall inure solely to the benefit of TAN or its licensors,
as applicable.
Software Licensing, Services antl 3tl Party Protlucts Agt. (v. Mar. 28, 2008)
GENERAL TERMS
9.3 Restrictions. Customer will not anytime whether before or
after the termination of this Agreement:
(a) reverse engineer, disassemble, or decompile any Products
or prepare derivative works thereof;
(b) copy, transfer, display, or use the Products except as
expressly authorized in this Agreement or in the applicable
documentation;
(c) disclose, furnish, or make accessible to anyone any
confidential information received from TAN or make any use
thereof other than as expressly permitted under this Agreement,
which confidential information is deemed to include the source
and executable code of the Software and all related
documentation;
(d) contest or do or aid others in contesting or doing anything
which impairs the validity of any proprietary or intellectual
property rights, title, or interest of TAN in and to any Products;
or
(e) obliterate, alter, or remove any proprietary or intellectual
property notices from the Products in physical or electronic
forms.
30. INDEMNIFICATION
(a) Indemnified Claims. Each Party ("Indemnifying Party")
shall fully indemnify, defend and hold harmless the other
Party ("Indemnified Part}'), and its respective pazents,
subsidiaries and affiliates and all of the foregoing entities'
officers, directors, employees, agents, wnfractors and
licensees, and their successors and assigns, from and against
any and all third party claims, actions, suits, ]egal proceedings,
demands, liabilities, damages, losses, judgments, settlements,
costs and expenses, including, without limitation, reasonable
attorney's fees, arising out of or in connection with any alleged
or actual that: is based upon the Indemnifying Party's breach
of a representation, wasanty or obligation hereunder, (ii)
arises out of the Indemnifying Party's gross negligence or
wilful misconduct; (iii) is based upon the Indemnifying
Party's violation of any applicable federal, state or local law or
regulation; or (iv) is based upon any claim of infringement of
any US or Canadian copyright, patent, trade secret or other
intellectual property rights or similar rights of any third party
arising out of any authorized use of any software or products
licensed and/or delivered under this Agreement. In the event
that a claim of infringement is established with regard to the
Licensed Software, Hosted Software or Third Party Products
licensed or delivered by TAN under this Agreement, or in
TAN's opinion might be held to infringe as set forth above,
TAN shall, at its own expense and option, procure for
Customer the right to exercise the rights and licenses granted
to Customer under this Agreement or modify the Licensed
Softwaze, Hosted Sofrwaze or Third Party Products such that
each affected is no longer infringing. If neither of such
alternatives is, in TAN's opinion, commercially reasonable,
the infringing software or product shall be returned to TAN
and TAN's sole liability, in addition to its obligation to
reimburse awazded damages, costs and expenses set forth
above, shall be to refund the amounts paid to TAN by
Customer for such software or product. Notwithstanding the
above, and subject to the procedure set forth in section 10(b)
below, TAN shall have no liability for any claim of
infringement related to any software or product supplied by
TAN under this Agreement that arises from: Customer's
unauthorized use of such software or,product, Customer's use
of such software or product in combination with any items not
supplied by TAN, or any modification by Customer or a third
party of any softwaze or product supplied by TAN.
(b) Indemnification Claims Procedure. The Indemnified Party
shall promptly notify the Indemnifying Party in writing of any
Indemnified Claim, specifying the nature of the action and the
total monetary or relief sought therein. The Indemnified Party
shall cooperate with the Indemnifying Party at the Indemnifying
Party's expense in all reasonable respects in connection with the
defense of any such Indemnified Claim or Additional
Indemnified Claim. The Indemnifying Party may upon written
notice to the Indemnified Party undertake to control and conduct
all proceedings or negotiations in connection therewith, assume
and control the defense of such Indemnified Claims or
Additional Indemnified Claims, and if it so undertakes, it shall
also undertake all other required steps or proceedings to settle or
defend any such Indemnified Claim or Additional Indemnified
Claim, including the employment of counsel which shall be
reasonably satisfactory to the Indemnified Party, and payment of
all reasonably incurred expenses. Notwithstandingthe foregoing
the Indemnified Party has the right to employ sepazate counsel to
provide input to the defense, at the Indemnified Party's own cost.
The Indemnifying Party shall reimburse the Indemnified Party
upon demand for any payments made or loss suffered by it at any
time after the date of tender, based upon the judgment of any
court of competent jurisdiction or pursuant to a bona fide
compromise or settlement of Indemnified Claims. The
Indemnifying Party shall not settle any Indemnified Claim or
Additional Indemnified Claim under this section on the
Indemnified Party's behalf without first obtaining the
Indemnified Party's written permission, which permission shall
not be unreasonably withheld, and the Indemnifying Party shall
indemnify and hold the Indemnified Party harmless from and
against any costs, damages and fees reasonably incurred by the
Indemnified Party, including fees of attorneys and other
professionals, that aze attributable W such Indemnified Claims.
The Indemnifying Party shall not be responsible for any
indemnification obligations arising hereunder pursuant to the
terms and conditions of any settlement of an Indemnified Claim
by the Indemnified Party unless such settlement was approved
by the Indemnifying Party, which approval shall not be
unreasonably withheld.
il. GENERAL
11.1 Entire Agreement. This Agreement, including all
attachments and referenced schedules, constitutes the complete
and exclusive statement of the agreement between TAN and
Customer with respect to the subject matterhereof. It supersedes
5
8ottware Licensing, Services antl 3tl Party ProtluctS ltgt. (v. Mar. 28, 2008)
GENERAL TERMS
and replaces all oral or written ItFPs, proposals, prior
agreements, and other prior communications between the parties
concerning the subject matter of this Agreement. This
Agreement may not be modified or altered except by written
instrument duly executed by both parties, except that TAN may
fill future purchase or other orders for further goods or services
available under this Agreement and, if TAN does so, the
provisions of this Agreement will contain the only commercial
terms applicable to such transaction despite such purchase or
other order stating otherwise. Any Addendum attached hereto
shall form an integral part of this Agreement and, in the event of
any inconsistency between these General Terms and any
Addendum, the provisions of the Addendum shall prevail.
11.2 Force Majeure. Dates or times by which either party is
required to perform under this Agreement, excepting the
payment of any fees or chazges due hereunder, will be postponed
automatically to the extent that any party is prevented from
meeting themby causes beyond its reasonable control, provided
such party promptly notifies the other thereof and makes
reasonable efforts to perform.
11.3 Notices. All notices and requests in connection with this
Agreement will be given to the respective parties in writing and
will be deemed given as of the first business day of the notified
party following the day the notice is faxed or sent via overnight
courier, providing a hard copy acknowledgment of such
successful faxed notice transmission or evidence of such
couriering, as applicable, is retained. Notice may also be
deposited in the mails, postage pre-paid, certified or registered,
return receipt requested, and addressed to the parties as indicated
on the face of this Agreement or such other address of which the
party gives notice in accordance herewith, and receipt of any
such notice will be deemed to be effective as of the third
business day following such deposit.
11.4 Governing Law. This Agreement and performance
hereunder will be governed by the laws of the jurisdiction in
which the Customer is located as indicated on the face of this
Agreement, except that (i) in the case of Louisiana, the laws of
California will apply, and (ii) in the case of Quebec, the laws of
Ontario will apply.
11.5 Attorney Fees. In any action or suit to enforce any right or
remedy under this Agreement or to interpret any provision of this
Agreement, the prevailing party shall be entitled to recover its
costs, including reasonable attorneys' fees.
11.6 Non-Assignability. Neither party may assign its rights or
obligations arising out of this Agreement without the other
party's prior written consent, except that TAN may assign this
Agreement in connection with any sale or security interest
involving all or substantially all of its assets or any other
transaction in which more than fifty percent of its voting
securities aze transferred.
11.7 Term and Survival. The term of this Agreement shall
commence on the Effective Date set out on the cover page hereof
and shall continue as set forth in Sections 18.1 or 25.1, as
applicable, or until terminated in accordance with Section 7.
Sections 1.1, 5, 7.3, 9.2, 9.3, 11, 11, 29.1, and 29.2 of this
Agreement, along with all unpaid payment obligations, will
survive termination and expiration of this Agreement.
11.8 No Authority to Bind. Neither party shall incur any
obligations for or in the name of the other party, or have the
authority to bind or obligate the other party. Neither party shall
make, issue or authorize any statements (whether or oral or
written) in contravention of the foregoing.
11.9 Counterparts. This Agreement may be executed in
separate counterparts and delivered by facsimile or such other
electronic means as are available to the Parties. Such
counterparts taken together shall constitute one and the same
original document.
11.10 Severability. If any provision of this Agreement is
held by a court of competent jurisdiction to be invalid,
unenforceable, or void, the remainder of this Agreement and
such provisions shall remain in full force and effect.
11.11 Cooperative Procurement. Upon consent by
Active, this Agreement maybe used for permitted cooperative
procurement by any public or municipal body, entity, agency
or institution. If so authorized, and in order to forego a related
entity RFP or similar competitive bidding process, the
Agreement maybe extended to such other entities indicated
above for the procurement of similar products and/or services
provided to Customer herein and at fees in accordance with
the Agreement unless separately negotiated between such
other entities and Active. Further related entities participating
in a cooperative procurement process shall place their own
orders directly with Active and will fully and independently
administer their use of the Agreement to include such
contractual as those entities and Active deem appropriate
without direct administration from the original Customer.
SCHEDULE A: TERMS APPLICABLE ONLY TO
HOSTED SOFTWARE
12. HOSTED SOFTWARE
12.1 TAN will provide Customer with access to hosted versions
of the products identified in the Pricing Form and associated
Online Services, and TAN hereby grants to Customer a limited,
non-exclusive, non-transferable license to use the Hosted
Software in accordance with the applicable documentation.
13. SUPPORT FOR HOSTED SOFTWARE
13.1 TAN will, during all periods in respect of which Customer
has subscribed for Hosted Softwaze, provide Support to
Customer (and, where applicable, duecdy to users of Customer's
own services and products who access the Hosted Software) in
accordance with applicable sections of the Support and
Maintenance Handbook.
6
Software Licensing, Services antl 3tl Party Products Agt. (v. Mar. 28, 2008)
GENERAL TERMS
14. LICENSE AND BRANDING
14.1 TAN hereby grants to Customer a limited, non-exclusive,
non-transferable license to display, reproduce, distribute, and
transmit in digital form TAN's name and logo in connection with
promotion of the Online Services only in the manner approved of
by TAN during the term of this Agreement. Customer hereby
grants to TAN a limited non-transferable license to use, display,
reproduce, distribute, adapt and transmit in digital or printed
form information provided by Customer relating to its
organization, including its name, trademarks, service marks and
logo, in connection with the implementation and promotion of
the Online Services; provided, however, that such use shallbe as
necessary to TAN's performance under this Agreement.
Customer will make reasonable efforts to encourage adoption of
the Online Services, including displaying TAN's name and logo
or "Powered by Active" logo, in the form supplied by TAN from
time to time and in a manner approved by TAN, acting
reasonably, in any medium used by Customer to promote its
programs or services to prospective participants.
15. INFORMATION SECURITY AND PRIVACY FOR
HOSTED SOFTWARE
15.1 TAN will collect information, including names, addresses,
gender, phone numbers, email addresses, birth dates, fmancial
information (for payment purposes) and other such information
from individuals using the Online Services as is reasonably
required to provide the Services. TAN will store such
information on a secure remote server using reasonable
safeguazds in accordance with TAN's published online privacy
policies and in compliance with all applicable laws, codes of
practice, and other legal obligations associated with the
collection, use, and disclosure of personal information.
Customer may access this information by downloading it from
TAN's servers using a Customer assigned private password and
"login" identifier. Upon request TAN will make such
information available to Customer via e-mail, fax or airmail.
Customer will be responsible for protecting the privacy and
security of any information that Customer retrieves from TAN's
servers and shall prevent any unauthorized or illegal use or
dissemination of such information and shall be solely responsible
for ensuring compliance with any applicable data and privacy
protection laws, codes of practice, and other legal obligations
associated with the collection, use, and disclosure of personal
information by Customer, including such disclosure to TAN as
is necessary for TAN to provide the Services and Products to
Customer. Customer and/or its clients shall exclusively own the
personal data collected by TAN ixm connection with the Hosted
Software; provided, however, TAN is granted aroyalty-free,
perpetual, non-exclusive right and license to use, reproduce,
distribute and adapt the collected data as is necessary for TAN to
perform its obligations under this Agreement, including for
purposes of communicating with Customer or Customer's clients
as necessary, fulfilling requests for products and services
requested from Customer or Customer's clients, providing
customized content and advertising provided in connection with
the Hosted Software, conducting internal TAN reseazch intended
to improve the products and services provided by TAN and its
affiliates, and to provide anonymous and aggregated reporting of
non-individual data for internal and external clients of Customer
or TAN. Any use of such data will conform with applicable
laws related to personal privacy and best practises around
permissive marketing, such as use of "opt-in" and/or "opt-out"
notifications and rights.
16. FEES FOR HOSTED SOFTWARE
16.1 Transaction fees.
(a) Customer shall pay to TAN the Hosted Softwaze service
fees ("Service Charges")set out in the Pricing Form
(b) In cases where TAN's banking or financial partners or
similar service providers impose changes in processing costs
payable by TAN, TAN reserves the right to modify Service
Chages. TAN shall notify Customer at least ninety (90) days in
advance of any such changes. Customer agrees to such changes
unless Customer provides TAN with written objection to such
changes within thirty (30) days from the date such change is
implemented. In the event Customer notifies TAN of its
objection to the changes as noted above, Customer's sole remedy
shall be to immediately terminate the Agreement as applied to
the Hosted Softwaze, subject to payment of any fees due prior to
such notice of termination.
(c) TAN will be responsible for collecting all payments
processed through the Online Services and all Service Charges
assessed by TAN. All payments aze Customer's exclusive
property and will be sent to Customer twice a month while
Service Chages shall be retained by TAN.
(d) If Customer enters transactions at fee amounts less than
those actually chazged to Customer's Users, thus reducing or
avoiding applicable Service Charges, such action shall constitute
a material breach of this Agreement.
(e) TAN shall not be responsible for processing or making any
refunds. All refunds for payments processed will be assessed a
$.10 fee chazged by TAN to Customer. TAN may set off against
user fees collected by TAN to the amount of any credit card
charge backs and associated fees applicable to user transactions
and to reimburse itself for any overdue fees owed to TAN by
Customer. To the extent that such funds are not available for set
off, Customer shall promptly reimburse TAN for any deficiency.
16.2 Subscription fees.
Customer shall pay to TAN the Hosted Software subscription
fees ("Subscription Fees") set out in the Pricing Form and for
the term of this Agreement established in Section 18 below.
Customer will be invoiced for their fast year Subscription Fees
upon the first live operational use of the Hosted Software ("Go-
Live Date"), with subsequent annual Subscription Fees being
invoiced upon each anniversary of Go-Live Date. Payment will
be made Net 30 days from invoice date.
17. EXCLUSIVITY FOR HOSTED SOFTWARE
TAN will, during all periods for which Customer has subscribed
for Hosted Softwaze, be the sole and exclusive provider to
7
Software Licensing, Services antl 3tl Party Products Agt. (v. Mar. 28, 2008)
GENERAL TERMS
Customer of the Hosted Software and Online Services, or any
products or services substantially similaz thereto, for the part of
Customer's organization utilizing the Hosted Software and
Online Services.
18. TERM FOR HOSTED SOFTWARE
18.1 Unless otherwise provided in the Pricing Form, TAN shall
provide to Customer, and Customer shall purchase from TAN,
the Hosted Software commencing on the Effective Date of this
Agreement, and remaining in full force for a period of three (3)
yeazs from the Go-Live Date of the Hosted Software (the "Initial
Term"), with automatic renewals for three (3) year terms (each a
"Renewal Term") thereafter until either party gives written
notice to terminate the Hosted Software no less than twelve (12)
months prior to the end of the Initial Term or Renewal Term, as
applicable.
SCHEDULE B: TERMS APPLICABLE ONLY TO
LICENSED SOFTWARE AND ASSOCIATED SUPPORT
AND MAINTENANCE SERVICES
19. ACCESS TO SYSTEM AND OTHER CUSTOMER
OBLIGATIONS
19.1 Access. Customer will provide, at no cost to TAN
(a) subject to the security requirements of Customer, 24 hour
access to Customer's system via either an always-available
telephone circuit or an always available Internet connection to
enable TAN or its designated representative to perform any of
the obligations placed upon TAN by this Agreement; and
(b) subject to the security requirements of Customer, remote
dial up/Internet access methods approved by TAN to allow TAN
to remotely diagnose and correct errors in the Licensed Softwaze
and provide other Services.
19.2 Customer Obligations. Without limiting any of
Customer's other obligations under this Agreement, Customer
will:
(a) use its best efforts to upgrade to any new Release or
Version of the Licensed Softwaze as soon as possible after
becoming aware of its availability;
(b) ensure that at all times at least one current staff person of
Customer has been fully trained on the Licensed Softwaze; and
(a) Workstation-Based Modules. In respect of each
Workstation-based Core Module and each Workstation-based
Add-on Module, Customer may install and use each Module on
Workstations to access the Enterprise Database on the Database
Server, provided that the number of copies of any particular
Module in use does not exceed the number of licenses granted to
Customer therefore as set out in the Pricing Form.
(b) Server-based Add-on Modules. Customer may install and
use each Server-based Module on as many Workstations as is
desired by Customer, and Customer may use and permit use of
such Modules by its clients, all without limit to the number of
Users or transactions which simultaneously use any such
Module, provided however that:
(i) in respect of each TeleReg & Voice Server Module,
Customer may install one copy of each Module on one
IVR Server, provided that the number of copies of any
particulaz Module in use does not exceed the number of
licenses granted to Customer therefore as set out in the
Pricing Form, and all such Modules together maybe in
Concurrent Use not to exceed the number of licenses
granted to Customer for TeleReg Lines Modules as set
out in the Pricing Form; and
(ii) in respect of each Payment Server Module, such
Modules may be in Concurrent Use not to exceed the
number of licenses granted to Customer for Point of
Sale Modules as set out in the Pricing Form.
(c) Server-based On-line (Internet) Modules. In respect of
each Server-based On-line (Internet) Module, Customer may:
(i) install one copy of each Module on one Internet Server,
provided that the number of copies of the Module in
use does not exceed the number of licenses granted to
Customer therefore as set out in the Pricing Form; and
(ip subject to 20(d), pemtit Users to access and use such
Modules to access the Database Server via Internet
Clients connecting via a licensed Internet Server, and
all such Modules together may be in Concurrent Use
not to exceed the number of licenses granted to
Customer for Online Client Access Modules as set out
in the Pricing Form multiplied by twenty-five (25).
(d) Cumulative Workstation-based Modules. In respect of
each Cumulative Workstation-based Module, Customer may:
(c) designate by written notice a single site and single person
as the point of contact for telephone or other contact, which site
and/or person Customer may change upon 14 days prior notice to
TAN.
20. GRANT OF LICENSES AND LIMITATIONS
THEREON
20.1 TAN hereby grants to Customer anon-exclusive and
non-transferable right and license, subject to this Agreement, to
install and/or use the Licensed Software, in the manner
contemplated hi the applicable user documentation, as follows:
(i) install one copy of each Module on a single
Workstation for each license granted to Customer
therefore as set out in the Pricing Form; and
(ii) permit Users using such licensed Workstation(s) to use
such Module(s) provided, for greater certainty, that the
Modules maybe in Concurrent Use not to exceed the
number of licenses granted to Customer therefore as set
out in the Pricing Form.
Software Licensing, Services and 3d Party Protlucts Agt. (v. Mar. 28, 2008)
GENERAL TERMS
(e) Customer hereby acknowledges that the mechanism
utilized by the Licensed Software to control the number of Users
or Online Client Access which can simultaneously access and
use Server-based On-line (Internet) Modules is based upon the
number of Users who have at any time logged into Customer's
computer network using their passwords, such that any User so
logged into such network in a manner that would enable the User
to access and use such Modules will reduce by one the number
ofUsers able to simultaneously access those Modules, regazdless
of whether or not such User is in fact accessing or using any
such Module. Customer hereby waives any claim, and releases
TAN from any such claim and from any losses or damages
Customer suffers in relation thereto, in connection with the
inability of Users to simultaneously access such Modules where
such inability is the result of inactive logged-in Users absorbing
available login access.
20.2 Additional Copies. Customer will not make any copies of
the Licensed Software except as necessary for the installation
permitted hereby and except for:
(a) copies of each Module licensed hereunder for training and
testing purposes, and
(b) one copy of each Module licensed hereunder for backup
purposes, provided that all electronic copies made include screen
displays of TAN's proprietary or intellectual property notices as
recorded on the original copy provided by TAN and Customer
affixes a label to each disk, reel, or other housing for the medium
on which each physical copy is recorded setting out the same
proprietary and intellectual property notices as appeaz on the unit
of Licensed Software from which the copy is made in the same
manner as those notices appeaz on that original copy.
21. LICENSED SOFTWARE FEES
(b) Services which aze required to remedy problems that stem
from changes to or defects in system configuration upon which
the Licensed softwaze was initially installed;
(c) Services which are required to remedy problems which do
not stem from any defect in Licensed Software;
(d) Services which are required toremedyproblemscausedby
lack of training of Customer's personnel or improper treatment
or use of the Licensed Software;
(e) Full report customization service;
(f) Any and all hazdware support, maintenance or
troubleshooting issues, except as described in section 28.1
regazdless of the source of such hardware.
2a. FEES FOR SUPPORT AND MAINTENANCE
24.1 Support and Maintenance services begin on the Support
Start Date. The cost for Support and Maintenance services is
payable annually in advance and is due in its entirety thirty (30)
days from date of TAN's delivered invoice. Customer may elect
to specify a preferred alternate Support Renewal Date by so
notifying TAN in writing. If an alternate preferred Support
Renewal Date is specified, the cost of Support and Maintenance
will be prorated from the anniversary of the Support Start Date to
the specified Support Renewal Date. Thereafter, the Support and
Maintenance fee is payable in advance on every annual
anniversary of the Support Start Date or, if there is a Support
Renewal Date, every anniversary of the Support Renewal Date
(the applicable atutiversary being the "Support Renewal Date").
TAN will provide invoices to Customer for all such amounts,
such invoices due on the later of (a) the Support Start Date or
applicable Support Renewal Date, as applicable, and (b) 30 days
from the date of the invoice.
21.1 In respect of each Module, Customer shall pay to TAN all
applicable Licensed Software fees listed in the Pricing Form
upon delivery (as defined in Section 2.3) of the Licensed
softwaze.
22. MAINTENANCE SERVICES
22.1 TAN will develop new Releases and new Versions of
Licensed Software in accordance with the procedures and other
particulars set out in the Support and Maintenance Handbook.
22.2 Provided that Customer continues to subscribe for Support
and Maintenance in respect of a particular Licensed Software
Product, TAN will provide to Customer, either in physical form
by mail or courier or in electronic form via the Internet, new
Releases and Versions (and appropriate documentation) for such
Licensed softwaze Products as such Releases or Versions (and
documentation) become available.
23. EXCLUDED SUPPLIES AND SERVICES
(a) Without limitation, the following supplies and services are
excluded from Support and Maintenance:
24.2 For the fast yeaz of this Agreement commencing with the
Effective Date, Support and Maintenance pricing shall be equal
to twenty-five percent (25%) of the gross softwaze license fees.
Support and Maintenance pricing for all successive yeazs shall
be equal to twenty-five percent (25%) of the gross softwaze
license pricing chazged by TAN for equivalent softwaze as of the
date of each such renewal yeaz, provided, however, that any
increase in TAN's annual Support and Maintenance pricing for
any renewal year shall not exceed ten percent (10%) of the
renewal fees charged in the prior year. Any additional softwaze
licensed to Customer by TAN will increase the total gross
softwaze license fees upon which Maintenance and Support
pricing is based. TAN will provide invoices to Customer for
renewal fees up to 60 days prior to expiration of each term.
24.3 The Support and Maintenance fees identified in the Pricing
Form are applicable only upon the date of entry into this
Agreement, and aze subject to change thereafter in accordance
with this Agreement's terms.
24.4 Inconsideration of the Support and Maintenance provided
hereunder, Customer agrees to pay TAN the fees described in the
Pricing Form, as modified explicitly pursuant to this Agreement.
In the event Customer requires Support and Maintenance for
Software Licensing, Services and 3tl Varty Vrotlucts age. (v. Mar. 28, 2008)
GENERAL TERMS
additional Licensed Softwaze, Customer agrees to pay TAN the
additional Support and Maintenance fees applicable based upon
the fees then in effect, prorated from the date of agreement to
acquire such services to the Support Renewal Date.
24.5 Unless the Pricing Form indicates otherwise, the fees
chazged hereunder aze applicable to Support and Maintenance of
Licensed Software used with respect to only a single database of
Customer data. If Customer, after entering this Agreement,
places in service one or more additional databases to be used in
relation to the Licensed Softwaze, then for each such additional
database, an additiona125% of all gross Licensed Softwaze fees
due, exclusive of such extra database fees, will be payable
hereunder for Support and Maintenance. Customer will notify
TAN as soon as reasonably possible of the installation or use of
any such additional database(s).
24.6 TAN may terminate and suspend performance of all
Support and Maintenance if Customer fails to pay any past due
TAN invoice within 30 days of written notice of such failure, in
the event of any other material breach by Customer which
remains uncured 30 days after notice thereof or if any of the
Licensed Softwaze ceases to be subject of a valid Softwaze
License Agreement.
24.7 If at any time after Customer has initially licensed any of
the Licensed Software from TAN, Customer's right to receive
Support and Maintenance, or comparable services, from TAN
under this Agreement or a comparable agreement has lapsed for
any reason whatsoever, voluntarily or otherwise, and Customer
wishes to receive Support and Maintenance from TAN,
Customer will pay to TAN, prior to re-instatement of Support
and Maintenance services:
(a) a reinstatement fee equal to the greater of 50% of the
current annual support fee or the sum of the unpaid support fees
that would have been payable hereunder had this Agreement
been in force during the time in which Support and Maintenance
rights had so lapsed to the date of reinstatement, and
(b) at least one additional year of Support and Maintenance
from the date of reinstatement.
25. TERM FOR SUPPORT AND MAINTENANCE
25.1 Term. TAN shall provide to Customer, and Customer shall
purchase from TAN, Support and Maintenance for a period
commencing on the Support Start Date and, subject to
termination as provided herein, continuing until the following
Support Renewal Date or anniversary of the Support Start Date,
with automatic renewals for one (1) year terms thereafter until
either party gives written notice to terminate Support and the
Maintenance no less than ninety (90) days prior to the end of the
then-current term, provided however that the fees payable in
respect ofthe Services and the Products may be revised by TAN
in accordance with this Agreement.
SCHEDULE C: TERMS APPLICABLE ONLY TO THHiD
PARTY PRODUCTS AND SERVICES
26. PURCHASE AND SALE; DELIVERY
26.1 Purchase Commitment and Price. TAN hereby agrees to
sell to Customer, and Customer hereby agrees to purchase from
TAN, the Third Party Products listed in the Pricing Form in the
volumes and at the prices described therein.
26.2 Delivery. TAN will ship all or any part of the Third Party
Products to Customer as soon as reasonably practicable (or, if
the below-described purchase order documentation does not seek
immediate shipping, at the time TAN considers reasonable in
order to meet the desired delivery date described) after receipt by
TAN of a purchase order from Customer specifying the
particulaz Third Party Products sought, the number of such Third
Party Products sought, the price payable therefore, and the
desired date and location of delivery thereof. Any suchpurchase
order must, at a minimum, reference quantity, description and
price.
26.3 Changes by Customer to Delivery Schedule. Following
delivery by Customer of any purchase order documentation
described in section 26.2, no changes by Customer to the
shipment schedule described therein will be permitted unless
TAN is notified thereof in writing at least ninety (90) days in
advance of the delivery date sought in such purchase order
documentation.
26.a Acceptance of Purchase Orders. Purchase orders
delivered by Customer to TAN in respect of Third Party
Products are not binding upon TAN until accepted by TAN in
writing. In any case, despite any indication to the contrary
contained in any such purchase order documentation, no terms or
conditions on purchase order documentation issued by Customer,
other than the information required by TAN as set forth
expressly in this Agreement, will be binding upon TAN, nor will
any such terms or conditions modify or supplement this
Agreement in any way, notwithstanding the fact that TAN may
accept or otherwise approve such purchase orders. TAN reserves
the right to refuse any such purchase order for any reason not
contrary to this Agreement, including without limitation pricing
differences as described in section 27.2.
26.5 Additional Third Party Products. Customer may
purchase Third Party Products in addition to those listed in the
Pricing Form by issuing additional purchase order
documentation as described herein, provided that the supply (or
non-supply) of such additional Third Party Products will be
subject to this Agreement as though such additional Third Party
Products had been included in the Pricing Form on the date of
execution of Pricing Form subject to the following:
(a) the price for such additional Third Party Products is subject
to agreement between the parties each in their own absolute
discretion, and
10
Software Licensing, Services antl 3tl Party Protlucts Agt. (v. Mar. 25, 2008)
GENERAL TERMS
(b) TAN shall have the fight to discontinue delivery of such
additional Third Party Products upon at least ninety (90) days
written notice to Customer without any liability to Customer
whatsoever for such discontinuance.
27. CHARGES AND PAYMENTS
27.1 Prices. The pricing applicable to Third Party Products is as
set out in the Pricing Form in the form finally agreed to by the
Parties.
27.2 Pricing Variability. Customer acknowledges that
(a) the prices described in Pricing Form are applicable for
six (6) months afrer the date of execution hereof, and such prices
are based upon Customer taking delivery of the full number of
any particulaz Third Party Product listed in Pricing Form in a
single shipment
(b) and Customer hereby agrees that after the expiry of such
initial six-month period or, in case of Customer seeking, in a
particulaz shipment, delivery of less than all of the Third Party
Products of a particulaz type listed Pricing Form, the actual
prices may be higher. Prior to shipment of any Third Party
Products that would be subject to pricing that differs from that
described in the Pricing Form, TAN will notify Customer of any
such different pricing and Customer will accept such different
pricing, as mutually agreed between Customer and TAN, in
wilting.
28. SUPPORT FOR THIRD PARTY PRODUCTS
28.1 For the purpose of isolating support issues and
responsibility in respect of Third Party Products and their
interaction with any Products, TAN will provide initial first-tier
support, to a maximum of fifteen (15) minutes per support
inquiry, for Third Party Products, as further specified in the
Support and Maintenance Handbook.
rights. Customer will maintain in confidence and not use or
disclose any and all confidential business or technical
information connected with any Third Party Product except as
specifically permitted by a party having legal control of such
rights, and Customer will defend or settle any claim made or any
suit or proceeding brought against TAN insofar as such claim,
suit, or proceeding is based on an allegation that any Third Party
Product provided to Customer hereunder has been installed,
used, or otherwise treated by Customer or any client or customer
of Customer in violation of the proprietary rights of any third
party or on an allegation that Customer or any client or customer
of Customer has disclosed or used any confidential business or
technical information connected with any Third Party Product,
provided that TAN will notify Customer in writing promptly
afrer the claim, suit, or proceeding is known to TAN and will
give Customer such information and assistance as is reasonable
in the circumstances. Customer will have sole authority to
defend or settle any such claim at Customer's expense. Cuswmer
will indemnify and hold TAN harmless from and against any and
all such claims and will pay all damages and costs finally agreed
to be paid in settlement of such claim, suit or proceeding.
29.2 Third Party Products which are Software. Customer
acknowledges that the possession, installation and use of all
Third Party Products which aze softwaze shall be governed by
the terms of the software license(s) of the persons other than
TAN who possess the rights to control such possession,
installation and use.
30. WARRANTY
30.1 Warranty. TAN warrants to Customer that TAN has the
right to deliver the Third Party Products subject to any
documentation accompanying such Third Party Products at the
time of delivery and/or any licensing mechanisms, physical,
electronic or otherwise, included in any Third Party Products that
aze software.
29. PROPRIETARY RIGHTS
29.1 Third Party Proprietary Rights and Indemnity by
Customer. Customer acknowledges that any Third Party
Products supplied by TAN hereunder are supplied by TAN as a
reseller thereof and that the Third Party Products aze subject to
the intellectual property rights of the various third party
developers and/or manufacturers thereof, as applicable, including
without limitation copyilght, trade secret, trademark, and patent
30.2 Warranties Provided by Third Party Suppliers. Third
Party Products aze warranted by the manufacturers thereof in
accordance with the warranty statements accompanying delivery
of the Third Party Products, and Customer agrees that Customer
will rely solely on such Third Party Product warranties and
Customer shall make no claim against TAN on account of any
warranty, express or implied, which may apply to any Third
Party Product.
11
Software Licensing, Services antl 3tl Party Protlucts Agt. (v. Mar. 28, 2008)
~~~ "3"
Quoted by:
.~~s~ Date:
iiVM Quote Expiration:
Quote Number:
Reference Itl:
Pricing Form
Nick Nicholson
Aspen Parks end Recreatbn Department
Ship To: Bill To:
130 South Galena Street 130 South Galena Street
Sara Wise
06/03/2008
09/01/2008
162246-72136
1661/162246
Aspen, CO 81611-7902 Aspen, CO 81 Bt 1-1902
Purchase Order:
Phone: 970429-7727 Fax :
Email: nidcn~a.aspen.co.us
$ORWdre No. Of License Cost Total Maint. Fee Service Hrs.
Licenses License Cost
Activity Registration 1 $0 $0 $ 0.00 16
Facility Reservation i $0 $0 $ 0.00 16
Daycare 1 $0 $0 $ 0.00 8
Membership 1 $0 $0 $ 0.00 8
Point of Sale 1 $0 $0 $ 0.00 8
League Scheduling i $0 $0 $ 0.00 8
Public Access 1 $0 $0 $ 0.00 12
Total Software $ 0.00
Total Annual Maintenance Cost: $ 0.00
$erVICE8 Qty. Unit Price Extended Price
Financial Integration 8 $175 $ 1,400.00
On-Site Training Services 10 $500 $ 5,000.00
Business Process Review Onsite Services 3 $500 $ 1,500.00
Gate Kicker Installation Onsite Services 3 $500 $ 1,500.00
Pre-Project Planning & Documentation 8 $125 $ 1,000.00
Advanced Implementation & Training Services - 10 Staff 72 $100 $ 7,200.00
Members
Basic Implementation & Training Services - 10 Staff 32 $100 $ 3,200.00
Members (2 sessions ~ 16 hours each)
Gatekicker Installation (2 Locations) 16 $175 $ 2,800.00
Business Process Review (3 days with team / 1 day 32 $200 $ 6,400.00
documentation)
Total Services $ 30,000.00
~~~
Contract Based Revenue Qty. Unit Price Monthly Total Contract Total
Annual Transaction Minimum 1 $18,000 $ 18,000.00 $ 18,000.00
Point of Sale Annual Subscription 1 $100 $ 100.00 $ 1,200.00 (12 months)
Total Contract Based Revenue $ 18,100.00 $ 19,200.00
3rd Party HW/SW Qty. unit Price Extended Price
IDTech Weatherized Barcode/Mag 2 $203 $ 406.00
Combo Reader, serial
Gatekicker 2 $100 $ 200.00
Serial to IP Converter 2 $175 $ 350.00
Total 3rd Party HW/SW $ 956.00
Quote Summary
Total Sottware Cast $ 0.00
Total Maintenance Cost $ 0.00
Total Services Cost $ 30,000.00
Total 3rd Party Hardware/Software Cost $ 956.00
Total Contract Based Revenue $ 19,200.00
Grand Totat: = 30,956.00
Please Note
• Sales taxes, where applicable, are not included and prices are in the currency of the
country of installation (subject to change without notice).
Hardware, operating system, 3rd party software and site preparation are not included
unless otherwise noted.
• On-sRe services are exclusive of airfare.
• On-site services billed in minimum 8 hour daily increments.
Hardware is covered by Standard Manufacturer's warranty. Equipment that is
defective upon arrival will be replaced. RMA process will apply for items after support
has indicated there are no alternatives.
Hardware must be verified within 7 days of receipt. Hardware returned that is not
defective will be assessed a re-stocking fee. Hardware that is not confirmed within 7
days, will not be accepted by The Active Network.
• Transaction Fees: Transactions entered directly by participants through the Website
will be assessed the customary service fee charged by Active to online registrants
(°Service Charge"), as described below. Transactions entered by a member of the
Agency on behalf of a participant will be assessed a Service Charge equal to $2.00 for
all Cash and Check transactions and an additional 2.99%for credit card transactions.
Each online registrant will pay the event registration fee charged by Agency plus a
Service Charge equal to 2.99%+ $2.00 with a minimum Service Charge of $3.00. We
may change the Service Charge at any time and you agree to such change unless you
provide us with written objection to such change within 30 days from the date such
change is first implemented. We will be responsible for collecting all registration fees
charged by you and all Service Charges assessed by us. All registration fees, except
Service Charges, are your exclusive property. Any registration fees collected by us
will be sent to you twice a month and Service Charges shall be retained by us. You
shall guarantee and pay to Active a minimum aggregate Service Charge, whether
through offline or online transactions, of $18,000 per calendar year (the "Minimum
Yearly Service Charge'). You shall pay to Active the difference between such
Minimum Yearly Service Charge and the actual Service Charges collected by us
during the year, which will be billed at the end of each year beginning from the date
set forth on the Agreement. Active shall nd be responsible for processing or making
any refunds. All credit card refunds processed will be assessed a $.10 fee charged by
Alive to you. Alive may reimburse itself for any credit card charge backs and
associated fees out of registration fees collected by it. In the event such funds are not
available, you agree to reimburse Active for any charge backs or refunds.
For exisbng astomers, this quote may ba executed by purchase order, however the most recent enforceable
Agreement will coMaln the only commerdal temrs applicable to such trensectlon despite such purchase or
other order stating otherwise.
Irnoice me
C Purchase Order Number:
Credit Card
Number:
Method of Payment
~ Visa r MasterCarcl
Expiration Date:
I hereby Agree to pay the above quote with the stated method.
Signature:
Date:
Name: Title: